Kurt S. Odenwald, Presiding Judge.
Appellants, a group of homeowners, appeal from the judgment of the trial court dismissing their claims against various mortgage brokers and lenders for declaratory judgment, fraud, conspiracy to defraud, and violations of the Missouri Merchandising Practice Act ("MMPA"). Appellants challenge the dismissal of their claims on the ground that their Second Amended Petition set forth a short and plain statement of the facts showing their entitlement to relief. As to their claims for fraud and conspiracy to defraud, Appellants additionally assert that Respondents waived any objection to the particularity of their pleadings by failing to file a motion for more definite statement. Because of the pleading deficiencies of Appellants' Second Amended Petition and the deficiencies in the briefing on Point Four on appeal, we affirm the trial court's judgment dismissing Appellants' claims.
On April 26, 2013, sixteen homeowners ("Appellants") sued several mortgage brokers and lenders for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA.
On May 28, 2013, Appellants filed their First Amended Petition which reasserted the same claims for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA. Defendants Bank of America and U.S. Bank each moved to dismiss the First Amended Petition pursuant to Rule 55.27(a)(6) for failure to state a claim upon which relief can be granted. The trial court treated the defendants' motions to dismiss as motions for more a definite statement. The trial court then granted the defendants' motions and granted Appellants leave to amend and replead their claims against Bank of America and U.S. Bank.
Appellants filed a Second Amended Petition on April 17, 2014. The Second Amended Petition set forth the same four claims for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA. Bank of America and U.S. Bank each filed a motion to dismiss the Second Amended Petition asserting that Appellants failed to incorporate new factual allegations sufficient to state a claim and that the Second Amended Petition still suffered from multiple pleading deficiencies. Following a hearing on the matter, the trial court granted the motions to dismiss finding that Appellants' Second Amended Petition failed to adequately plead causes of action against Bank of America and U.S. Bank.
On July 8, 2014, Defendant Doug Stahlschmidt ("Stahlschmidt") filed a motion for judgment on the pleadings, or, in the alternative, a motion to dismiss. The trial court found that the claims against Stahlschmidt were identical to the claims against Bank of America and U.S. Bank that it previously had dismissed for failure to state a claim. Accordingly, the trial court granted Stahlschmidt's motion to dismiss. In the same order, the trial court dismissed all claims against the remaining defendants for lack of service. Appellants now appeal the trial court's judgment dismissing their claims against Bank of America, U.S. Bank, and Stahlschmidt (collectively, "Respondents").
Appellants present four points on appeal. In their first two points, Appellants contend that they sufficiently pleaded their claims in the Second Amended Petition showing their entitlement to declaratory relief and the Respondents' violations of the MMPA. Appellants challenge the trial court's dismissal of these causes of action. Appellants next assert that the trial court erred in dismissing their claims for fraud and conspiracy to commit fraud on the ground that the claims were not pleaded with the requisite particularity under Rule 55.15 because Respondents waived any objection
We review a trial court's grant of a motion to dismiss de novo. Thomas v. A.G. Elec., Inc., 304 S.W.3d 179, 182 (Mo. App.E.D.2009). Because the trial court failed to state a basis for its dismissal of these actions, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss and will affirm the dismissal if it is supported by any ground. Summer Chase Second Addition Subdivision Homeowners Ass'n v. Taylor-Morley, Inc., 146 S.W.3d 411, 415 (Mo.App.E.D.2004). A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). Accordingly, we review the petition in an almost academic manner to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case. Id. In so doing, we assume that all of the plaintiff's averments are true, and liberally grant the plaintiff all reasonable inferences. Id.
Missouri is a fact pleading state. Jones v. St. Charles County, 181 S.W.3d 197, 202 (Mo.App.E.D.2005). The purpose of fact pleading is to enable a person of common understanding to know what is intended. Whipple v. Allen, 324 S.W.3d 447, 449 (Mo.App.E.D.2010) (internal quotation omitted). As such, a petition must contain a short and plain statement of the facts showing that the pleader is entitled to relief. Rule 55.05. "Although the petition need not plead evidentiary or operative facts showing an entitlement to the relief sought, it must plead ultimate facts demonstrating such an entitlement." Williams v. Barnes & Noble, Inc., 174 S.W.3d 556, 559-60 (Mo.App.W.D.2005). The petition may not merely assert conclusions, and in determining whether a petition states a cause of action, we are to disregard conclusions not supported by facts. Id. at 560. "Where a petition contains only conclusions and does not contain the ultimate facts or any allegations from which to infer those facts, a motion to dismiss is properly granted." Westphal v. Lake Lotawana Ass'n. Inc., 95 S.W.3d 144, 152 (Mo.App. W.D.2003) (internal quotation omitted).
Appellants' first point on appeal relates to their claims for declaratory relief against U.S. Bank and Bank of America.
A petition for declaratory relief must set forth facts establishing (1) the existence of a justiciable controversy and (2) that the plaintiff has no adequate remedy at law. Foster v. State, 352 S.W.3d 357, 359 (Mo. banc 2011). Critically, Appellants have not pleaded facts establishing the second element — that Appellants lack an adequate remedy at law. "The term `adequate remedy at law' generally means that damages will not adequately compensate the plaintiff for the injury or threatened injury, or that the plaintiff would be faced with a multiplicity of suits at law." Walker v. Hanke, 992 S.W.2d 925, 933 (Mo.App.W.D.1999). The Second Amended Petition contains only two paragraphs relating to this element:
Appellants' allegation that their properties are "unique" does not demonstrate that damages will not adequately compensate for their alleged injury, or that they will be faced with a multiplicity of suits at law. Nor does Appellants' conclusion that the notes and deeds of trust are negotiable instruments provide support for the element requiring that plaintiffs have an inadequate remedy at law. Where a petition states only conclusions and contains no ultimate facts which support those conclusions, a motion to dismiss is properly granted. Westphal, 95 S.W.3d at 152. Appellants have failed to plead facts demonstrating their right to declaratory relief. Accordingly, Point One is denied.
Appellants' second point on appeal challenges the dismissal of their claims brought under the MMPA. A properly stated cause of action under the MMPA requires a plaintiff to allege that: (1) the defendant used or employed a deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or a concealment, suppression, or omission of a material fact; (2) the fraudulent act occurred in connection with the sale or advertisement of merchandise in trade or commerce; (3) the fraudulent act resulted in an ascertainable loss of money or property; and (4) the loss occurred to a person who purchased or leased merchandise primarily for personal, family, or household purposes. Sections 407.020-.025; Edmonds v. Hough, 344 S.W.3d 219, 223 (Mo. App. E D.2011).
Appellants allege multiple violations of the MMPA involving different individual homeowners and various defendants, including the respondents in this appeal. Because each count of the Second Amended Petition sets forth the same factual allegations, we analyze these various counts together to determine whether Appellants have properly stated a claim for violations of the MMPA. Respondents argue that the Second Amended Petition fails to plead several of the required elements to establish a violation of the
The record before us shows that Appellants have not pleaded facts demonstrating that
In their third point on appeal, Appellants assert that the trial court erred when it dismissed their claims for fraud and conspiracy to defraud on the ground that the claims lacked the requisite particularity under Rule 55.15. Appellants maintain that Respondents waived their right to object to the particularity of Appellants' claims when Respondents did not to move the trial court to require that Appellants file a more definite statement. Appellants claim they presented the issue of Respondents' failure to move for a more definite statement to the trial court, but Respondents ignored the issue and the trial court made no mention of it in its order. We find Appellants' argument disingenuous.
The purpose of a motion for more definite statement is to put a party on notice that his pleading is deficient and to provide that party an opportunity to cure the defects. See Eckerd v. Country Mut. Ins. Co., 289 S.W.3d 738, 743 (Mo. App.E.D.2009) (finding plaintiff's motion to strike defendant's affirmative defenses failed to put defendant on notice that its pleadings were allegedly deficient, and therefore plaintiff waived objection to the particularity of the affirmative defenses). "While a motion for a more definite statement is one manner in which a defendant may complain about the sufficiency of pleadings, a motion to dismiss can also be used to raise the issue." Breeden v. Hueser, 273 S.W.3d 1, 10 (Mo.App.W.D.2008).
In their respective motions to dismiss the First Amended Petition, both U.S.
Appellants' argument that Respondents waived their objection to the particularity of Appellants' claims is unavailing because Appellants were put on clear notice of the deficiencies in their pleading and given an opportunity to cure those deficiencies. See Eckerd v. Country Mut. Ins. Co., 289 S.W.3d at 743. Appellants' contention that the trial court ignored the issue of waiver in its order is simply false. Point Three is denied.
Appellants' fourth point on appeal also contests the trial court's dismissal of Appellants' claims for fraud and conspiracy to commit fraud. In this point, Appellants challenge the judgment of dismissal on the ground that the Second Amended Petition did not set forth sufficient facts to state a claim for fraud and conspiracy to commit fraud. Because Appellants' fourth point on appeal fails to comply with Rule 84.04(e), we do not consider it.
"To properly brief a case, an appellant is required to develop the issue raised in the point relied on in the argument portion of the brief." Kuenz v. Walker, 244 S.W.3d 191, 194 (Mo.App.E.D. 2007). If a party does not support contentions with relevant authority or argument beyond conclusory statements, the point is deemed abandoned. An argument must explain why, in the context of the case, the law supports the claim of reversible error. Rule 84.04(e); Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 585 (Mo. App.E.D.2009). "An argument should show how the principles of law and the facts of the case interact." Snyder v. Snyder, 142 S.W.3d 780, 783 (Mo.App.E.D. 2004).
Appellants' fourth point relied on states:
In the argument section of their brief, Appellants do not in any way develop the issue raised in the point relied on. More specifically, Appellants' argument does not explain how the facts pleaded in the Second Amended Petition satisfy the elements required to plead a cause of action for fraud and conspiracy to defraud against these respondents. Appellants neither state the requisite elements for these claims nor provide any citations to the record directing this Court to the factual allegations that satisfy those elements. Instead, Appellants' argument consists of a few conclusory statements followed by block quotations of case law. Appellants do not explain how the case law applies to their case, or how the case law supports their claim of error. This Court will not act as an advocate for Appellants by searching through Appellants' Second Amended Petition for factual allegations
A deficient argument that fails to comply with Rule 84.04(e) preserves nothing for appeal and merits dismissal. Carlisle v. Rainbow Connection, Inc., 300 S.W.3d at 586. The deficiencies of Point Four and its failure to comply with Rule 84.04(e) leave us no alternative but to dismiss this point on appeal.
Appellants failed to state a claim for declaratory relief or violations of the MMPA. Moreover, we hold that Respondents did not waive their objection to Appellants' failure to plead their fraud claims with the requisite factual particularity under Rule 55.15. Finally, Appellants' argument challenging the trial court's dismissal of their fraud and conspiracy to defraud claims preserves nothing for review. For these reasons, we affirm the judgment of the trial court.
Robert G. Dowd, Jr., Concurs
Gary M. Gaertner, Jr., Concurs